Berton v. Atlas Assur. Co.

• Decision Date: 09 September 1909
• Citation: 89 N.E. 244,203 Mass. 134
• Parties: BERTON v. ATLAS ASSUR. CO., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 134

89 N.E. 244

BERTON v. ATLAS ASSUR. CO., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 1909

COUNSEL

Otto C. Scales, for plaintiff.

Hill Barlow & Homans, for defendant.

OPINION

HAMMOND J.

The case having been submitted upon an agreed statement of facts with no power to draw inferences, the judgment must be for the defendant unless the facts show as matter of law that the plaintiff is entitled to recover. No inferences except those necessarily implied by law can be drawn either for or against the plaintiff. Boston v. Brooks, 187 Mass. 286, 73 N.E. 206, and cases cited; Commonwealth v. Cutter, 13 Allen, 393; Old Colony R. R. v. Wilder, 137 Mass 536. The question therefore is not whether the agreed facts with such inferences as a trior of fact--either judge or juror--could properly draw, would warrant a finding for the plaintiff, but whether, as matter of law, the agreed facts with the necessary legal inferences require a judgment for him.

The action is brought upon the theory that the policy in question was canceled by the defendant in the exercise of the right therein reserved to it. But it is manifest that a contract of insurance, like any other contract, can be canceled or prematurely terminated by mutual consent of the parties. If the policy was canceled under the right reserved in the contract, then the question would arise whether under the peculiar circumstances the plaintiff was entitled to the return premium. If, however, the policy was canceled by mutual consent, the provision for the return premium is not applicable.

We are of opinion that the agreed facts do not show conclusively that the policy was canceled by the defendant in the exercise of the right therein reserved. The whole premium had been charged to the plaintiff, but no part of it had been paid by him or by Knight. As between the insured and the insurer no part of the premium had been paid. The note given by Knight was dishonored when it came due, and it does not appear that any part of it ever has been paid. On November 2, 1908, just before the time it became due, Jones & Co., the defendant's agents, wrote to the plaintiff as follows:

'We understand that you were in our office last Saturday in regard to the insurance on the Bridgton House, and we would advise you that the note in payment of these policies comes due November 7th, the same being for $330.

'These policies are all written in your name and while we took a note from Mr. Knight as collateral to the account, yet the policies are not paid for until the note is paid.

'It being necessary to take immediate action, will you kindly advise us at once if it is your intention to pay the note at maturity. We presume you will desire to pay this note in order to continue your protection, but if not, kindly advise us at once, so that we may order the policies canceled and stop expense for you as it as now running on.'

No reply having been received, Jones & Co., on November 10 1908,...